{ "id": 3477381, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GEORGE DUNCAN, Defendant-Appellee", "name_abbreviation": "People v. Duncan", "decision_date": "1988-08-17", "docket_number": "No. 3\u201487\u20140792", "first_page": "554", "last_page": "558", "citations": [ { "type": "official", "cite": "173 Ill. App. 3d 554" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "311 N.E.2d 401", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2692667 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0334-01" ] }, { "cite": "392 U.S. 219", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168861 ], "weight": 6, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/392/0219-01" ] }, { "cite": "467 U.S. 431", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201711 ], "weight": 9, "opinion_index": 0, "case_paths": [ "/us/467/0431-01" ] }, { "cite": "806 F.2d 1307", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1656042 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/f2d/806/1307-01" ] }, { "cite": "424 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3109483 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0896-01" ] } ], "analysis": { "cardinality": 527, "char_count": 10171, "ocr_confidence": 0.769, "pagerank": { "raw": 8.661022253051769e-08, "percentile": 0.4917653500261984 }, "sha256": "311cccb0dc71c844fd833ba5905e0ac1254222a6dd8169e944125cf30f3cfeca", "simhash": "1:73e7b5dbd3c98c98", "word_count": 1704 }, "last_updated": "2023-07-14T14:33:51.483362+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GEORGE DUNCAN, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE STOUDER\ndelivered the opinion of the court:\nThe defendant, George Duncan was tried for the beating death of Yvette Searle in 1980. The jury returned a verdict of guilty of murder on May 30, 1980. The conviction was affirmed on appeal. (People v. Duncan (1981), 97 Ill. App. 3d 896, 424 N.E.2d 67.) At his trial, the defendant testified in his own defense.\nOn October 1, 1985, the defendant was granted habeas corpus relief by the United States District Court for the Central District of Illinois. (United, States ex rel. Duncan v. O\u2019Leary (C.D. Ill. Oct. 1, 1985), No. 84-2368, affd (7th Cir. 1986), 806 F.2d 1307.) The Federal court ruled that the first trial was tainted by a conflict of interest which the defendant had not adequately waived. The court ordered that the defendant be retried for the offense. United States ex rel. Duncan v. O\u2019Leary (C.D. Ill. Oct. 1, 1985), No. 84-2368, affd (7th Cir. 1986), 806 F.2d 1307.\nOn retrial, the defendant filed a pretrial motion to suppress evidence. The motion was granted in part. The prosecution filed a motion in limine for a ruling on the admissibility of the defendant\u2019s testimony from his first trial. The court ruled that the testimony could not be used except for impeachment purposes. The prosecution requests. that this court review the trial court\u2019s order in limine as to the defendant\u2019s prior testimony.\nOn February 19, 1980, the defendant went to his brother Chris\u2019 home and asked if someone could be unconscious from 6 a.m. until approximately 2:30 p.m. that same day. Chris, an officer with the Peoria police department, indicated that he did not believe so. The defendant then asked his brother to accompany him to his apartment to look at the body of his girlfriend, Yvette Searle. Chris Duncan then called the police department and advised them he would be late because of family problems. Upon arriving at the apartment, the defendant unlocked and opened the door and let his brother in. Chris Duncan observed the body of Yvette Searle on the bed, partly covered with a blanket. He checked for a pulse and found none. Chris then pulled back the blanket and observed bruises on the victim\u2019s body and face. He told the defendant he thought Yvette was dead.\nChris Duncan looked around the apartment and commented that the apartment was a mess. As the defendant began to straighten up the apartment, Chris told him to stop because the room was a crime scene and the lab was going to have to take pictures of the room.\nOn the advice of his brother, the defendant then drove with his brother to the police station. At the station, the defendant was turned over to Lieutenant Stenson. The defendant was directed to an interview room. Lieutenant Stenson called other officers into his office to discuss returning to the crime scene. On the advice of James Murphy, the police legal advisor, Murphy, Chris Duncan and a number of other officers returned to the defendant\u2019s apartment at about 3:30 p.m. A number of items that were in the officers\u2019 plain view were collected. Murphy advised against collecting any other items that were not in the parties\u2019 plain view without a search warrant.\nA search warrant was obtained at 10 p.m. on the same day. However, nothing was seized with this warrant due to inadequate lighting in the defendant\u2019s apartment. A second warrant was obtained the following day, at which time a complete search was conducted.\nOn November 9, 1987, the trial court granted in part the defendant\u2019s motion to suppress all the items seized at the apartment during the second entry of Chris Duncan and the other police officers. The court made an exception to this ruling however, holding that the body itself and any photographs taken were admissible. The court also ruled on the the State\u2019s motion in limine to determine the admissibility of the defendant\u2019s testimony at his first trial. The court ruled the testimony could not be used except for impeachment purposes.\nInitially, the people argue that the trial court was in error in holding that the evidence obtained during the second entry into the defendant\u2019s apartment was inadmissible. The State\u2019s initial justification for the warrantless seizure is that the items seized were in plain view. This theory was argued before and rejected by the trial court. The trial court noted correctly that in order for the plain view exception to the warrant requirement to operate, the officers must lawfully be on the premises. In the present case the police were not legally upon the defendant\u2019s property. Although it is correct that Chris Duncan, the defendant\u2019s brother and a Peoria police officer, was invited to the defendant\u2019s home and did view the crime scene, it would be a manipulation of the facts to find that he consented to the Peoria police department\u2019s second entry.\nHowever, simply because the plain view exception is not applicable does not mean that' the evidence seized should be suppressed. The Supreme Court case, Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501, is controlling. In Nix, evidence became available to the police after the defendant had directed the officers to the victim\u2019s body. The defendant directed the officers to the body after a police officer\u2019s appeal to locate the body so that it might be given a Christian burial. The officer\u2019s appeal was made during a conversation with the defendant in the absence of counsel and despite an agreement with counsel that the petitioner would not be questioned.\nThe evidence sought to be admitted was the condition of the body as it was found, articles and photographs of the victim\u2019s clothing, and the results of postmortem medical and chemical tests performed upon the body.\nThe Supreme Court held the evidence pertaining to the discovery and condition of the victim\u2019s body was properly admitted at the respondent\u2019s second trial on the ground that it would have inevitably been discovered even if no violation of any constitutional provision had taken place. Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501.\nIn the present case the items seized in the police\u2019s initial entry into the apartment clearly would have been discovered upon the police obtaining a search warrant. At the suppression hearing the trial court ruled that the body and photographs of the body would be admissible. However, the court held that the other items seized should be excluded. We fail to see the rationale in the court\u2019s ruling. The items seized were in plain view in the room and around the body. In Nix, the Supreme Court stated that the rationale for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct is that such course is needed to deter police from violations of constitutional and statutory protections notwithstanding the high cost of letting obviously guilty persons go unpunished. Nix v. Williams (1984), 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501.\nThe record indicates that the items were in plain view and around the victim\u2019s body in the defendant\u2019s apartment. In addition it is clear that the police would have inevitably discovered the evidence by lawful means, here the obtaining of a search warrant at 10 p.m. the same day. Consequently the evidence collected by the police department in its initial entry into the defendant\u2019s apartment may be admitted at the defendant\u2019s trial.\nThe second ruling made by the trial court is that the defendant\u2019s testimony, given at his first trial, could be used in his second trial for impeachment purposes only. The State argues that the defendant\u2019s testimony at his first trial is admissible at his second trial in the prosecution\u2019s case in chief. The defendant contends the testimony is inadmissible for any purpose. We agree with the trial court\u2019s ruling.\nAs the State correctly points out, the general rule regarding a defendant\u2019s earlier trial testimony is that it is admissible against him at a later trial. (Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.) In permitting testimony from the first trial to be used in the subsequent trial it is assumed the defendant voluntarily availed himself of his right to testify at his first trial. People v. Moore (1974), 19 Ill. App. 3d 334, 311 N.E.2d 401.\nIn the instant case, the defendant\u2019s retrial resulted from the granting of a habeas petition in Federal district court which was later affirmed by the Seventh Circuit Court of Appeals. (United States ex rel. Duncan v. O\u2019Leary (7th Cir. 1986), 806 F.2d 1307.) The district court found, and the reviewing court affirmed, that the defendant had received ineffective assistance of counsel because his trial attorney labored under a conflict of interest. In addition, there was evidence of active collusion on the part of the assistant State\u2019s Attorney and the defense attorney.\nThe Supreme Court in Harrison stated that in examining cases of this sort, the question to be determined is not whether a party made a knowing decision to testify but why he chose to testify. (Harrison v. United States (1968), 392 U.S. 219, 20 L. Ed. 2d 1047, 88 S. Ct. 2008.) In this case the defendant was denied the effective assistance of counsel, which colored the entire proceeding. Justice suggests that the-defendant\u2019s statements were not made with any degree of particular advice. Consequently, the principles set forth in Harrison are applicable and the defendant\u2019s testimony may be used for impeachment purposes only.\nFor the foregoing reasons the judgment of the circuit court of Peoria County is reversed in part, affirmed in part, and remanded with directions to proceed with the views expressed within this opinion.\nAffirmed in part; reversed in part and remanded.\nSCOTT and BARRY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE STOUDER" } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield (Nathan P. Maddox, Terence Madsen, and Douglas K. Smith, Assistant Attorneys General, of counsel), for the People.", "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GEORGE DUNCAN, Defendant-Appellee.\nThird District\nNo. 3\u201487\u20140792\nOpinion filed August 17, 1988.\nNeil F. Hartigan, Attorney General, of Springfield (Nathan P. Maddox, Terence Madsen, and Douglas K. Smith, Assistant Attorneys General, of counsel), for the People.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellee." }, "file_name": "0554-01", "first_page_order": 576, "last_page_order": 580 }